In March 2017, we published an alert about the Full Bench of the Fair Work Commission’s consideration of the Australian Council of Trade Unions’ application for paid family and domestic violence leave to be included in modern awards.
The ACTU was seeking for employees under all modern Awards to have a right to 10 days’ paid family and domestic violence leave per year (which does not accumulate). If that leave is exhausted, employees would be able to take up to 2 days of unpaid family and domestic leave on each occasion.
On 3 July 2017, the majority of the Full Bench handed down its decision, forming the preliminary view that it is necessary for all Awards to provide for unpaid family and domestic violence leave. Additionally, the Commission held that employees should be able to access personal/carer’s leave for the purpose of taking paid family and domestic violence leave because:
- family and domestic violence is a significant problem which must be addressed by the community;
- family and domestic violence has a real and tangible impact on employees and employers in the workplace;
- the circumstances faced by employees who experience family and domestic violence require a specific response;
- existing leave entitlements do not necessarily meet the needs of an employee experiencing family and domestic violence; and
- there is no existing workplace right for employees experiencing family and domestic violence to be absent from work to attend court proceedings or to find alternative accommodation.
Despite the Commission’s support for unpaid family and domestic violence leave, it rejected the claim for paid leave because:
- the ACTU’s definition of family and domestic leave was considered to be too broad and difficult to apply;
- no satisfactory reason was given for why 10 days of paid leave should be provided;
- the evidence before the Commission did not support a finding that 10 days’ paid leave was necessary;
- at present there is little evidence on how often such leave is being used when it is provided; and
- the Commission was unable to assess the impact of the provision of paid family and domestic violence leave due to a lack of evidence.
For these reasons, the Commission considered that a cautious approach to paid family and domestic violence leave was required. However, the Commission did appreciate that the provision of paid leave would benefit both employees experiencing family violence and employers by reducing workplace disruption and encouraging employees to take earlier action to protect themselves.
The Commission stated that it would be open to reconsidering the necessity for paid family and domestic violence leave in the future. The Commission’s decision is consistent with the growing recognition of the importance of an integrated response to family and domestic violence. The Commission applauded employers who are already providing paid family and domestic violence leave.
The Commission invited parties to make submissions on its decision, and issued a Background Paper to assist interested parties in preparing their submissions. The Paper offered three ‘Proposed Model Terms’ for consideration, each providing slight variations on how to operate and define the leave clause. The submissions were considered and there were further conferences on 19 and 20 October 2017, with the Commission issuing a further statement on 20 October 2017.
The statement revealed that agreement has been reached between interested parties and the Commission regarding some aspects of a draft model unpaid family and domestic violence leave clause:
- the definition of family and domestic violence;
- access to unpaid family and domestic violence leave;
- notice and evidence requirements for employees to take unpaid family and domestic violence leave;
- compliance requirements for employees; and
- the confidentiality obligations of employers.
However, a number of matters concerning the extent of the entitlement remain in dispute.
Russell Kennedy will provide a further update when Commission makes its final decision on the provision of family and domestic violence leave. It will be important for employers to be aware of, and comply with, any new obligations regarding family and domestic violence leave.
The Full Bench’s general support for family and domestic violence leave follows Commissioner Johns’ endorsement of family violence leave policies in the case of King v D.C Lee & J.L Lyons  FWC 1664. In that case, a Sydney solicitor was found to have been unfairly dismissed after performance issues were raised due to her absence from work and her employment was terminated. The employee had to miss work to attend court in relation to criminal charges against her ex-partner. She did not fully disclose she was experiencing family violence to her employer. Although she was found to have breached her contractual duty to inform her employer of her absence, the Commission held her dismissal was harsh and disproportionate given her circumstances.
Commissioner Johns also noted that had the employer adopted a family and domestic violence leave policy, the events that gave rise to the case may have been very different. Commissioner Johns stated that such a policy would have “sent a very clear message” to employees that the employer “attaches no stigma to the victims of domestic and family violence” and that it would support them without the repercussions of any adverse action being taken in relation to their employment.
Accordingly, we recommend that employers implement family violence policies for their workers.